January 18, 2007

A Really Good Reason to Call Dick, Part Two

David Shuster is stumped. Is it possible, he asks, that a witness will contradict Dick's testimony?

Libby lawyer Ted Wells then said, “Vice
President Cheney will be a witness in this case. If his testimony is
contradicted by another witness, who you don’t know or have no feelings
about, would your feelings about the vice president make it difficult
for you to fairly evaluate the credibility of the vice president?”

What was Libby’s lawyer referring to? Is there a witness who will undermine the Vice President?

Shuster goes on to say there is no hint of such a witness in all the filings.

Despite all of the pre-trial filings, documents, and evidence
released...this is the first time such a suggestion has been made in
the CIA leak case.

In the filings, perhaps. But I've made such a suggestion, guessing (and it is a guess, mind you) that Cheney is being called to discredit one of Fitzgerald's most important witnesses, Cathie Martin.

It was clear as early as last March that two of Fitzgerald's most important witnesses are Cathie Martin and Ari Fleischer. Fleischer we believe to be the immunized witness. Libby has already laid groundwork to suggest that Ari testified to save his own ass.

But Martin may not be so easy to impeach. And if, as Murray's latest seems to say, the July 12 conversation aboard Air Force Two is really incriminating, then Libby's team needs to find a way to discredit Martin. Moreover, she was a witness to Libby's conversation with Cooper.

So I think it very likely that Cheney will come in and say that Martin's version of events is a bunch of baloney. Particularly given the way Wells described this hypothetical witness: "who you don’t know." Martin is, after all, the least known central witness in this case.

Excellent catch, and I bet you're right. Other possibilities - and these are not mutually exclusive - include Grenier and Schmall, perhaps especially for the conversations regarding Novak's column. But it could well be any number of other OVP folks as well. But if I had to bet on one, I'm with you it's Martin.

I'm still not sure why level headed jurors are being disqualified for not trusting Cheney's lies. They were lies spoken in a public forum, not a courtroom. It's not like Cheney has ever spoken under oath before... or has he? (!)

While there are surely many examples of females who can lie with aplomb, there are many examples of women who've gone to the other extreme (like Bunnatine Green, Sherron Watkins, Colleen Crowley...). In our society, women are persistently encouraged to "be nice girls." Being nice includes not telling lies; Fitz need only crack that social encoding if she's prevaricating.

Team Libby must be worried about this if they have to pull out the biggest single weapon they have; it's tantamount to going nuclear winter on the prosecution to have to use a rather intimidating, seated VP to discount a female staff member, no matter her level within their ranks. With a very few exceptions, women within the current administration are generally hand maids or cat's paws. Martin is likely a hand maid, but it doesn't matter; she's expendable as was Plame.

Team Libby is hoping that the two big white hunters, Libby and Cheney, outweigh Martin if this scenario is correct. Hence all the quizzing in voir dire over potential jurists' sentiments towards Cheney (or towards executives, whether Cheney directly or indirectly). They must hope that an alleged liar and a veep with a low JAR/high unfavorables combined are more credible than a mere female staff member who will likely feel as if she's being thrown under the bus.

Oh, I do hope she feels that way; you know what they say about a woman scorned.

Wish I could ask Pachacutec about this, get his assessment as a psychologist.

If they try to impeach Cathie Martin on her account of what she overheard Libby discuss with Cooper, to the extent her independent account happens to match whatever Cooper testified to, discrediting her over important points becomes a lot harder. Cheney/Libbby vs. Martin/Cooper over shared recall for the intimate gathering.

OK, easy question. Say Martin contradicts the VP. Does she stand to benefit in any way, say through putting up a block to a charge against her? Would she be incriminating herself if she corraborates Cheney? IIRC, she had to resign over this, eh?

FWIW, I asked Jeralyn just this question (albeit from a male perspective) when she was on the WaPo site on Tuesday. Here's what she said:

"Boston: As a defense lawyer, would you say that men are more likely than women to be 'loyal' and lie to protect associates or superiors? If so, do you think this results from social expectations toward men like courage and chivalry? Thanks.

Jeralyn Merritt: I certainly don't believe that. I don't think you can equate loyalty and propensity to lie or cover-up by gender."

kim -- could be PC, and 10 or 20 years ago, I might have said the same thing being stridently feminist. But after doing quite a bit of reading/research into human consciousness, I'm certain that there is a bias (not a 100% correlation, mind you) between states of consciousness and gender. It underpins the seemingly hokey women-Venus-men-Mars dichotomy. It doesn't makes us less equal, only different not-mirrored complementary halves of an entire genome.

Libby and Cheney are going to have a bias towards achievement, measured in their terms by winning/not winning; they keep score. They have to be cracked open along that fault line; as long as they think they are winning, they may slip. Or they may slip if they think they are losing and they are desperate. For them this entire thing is a game to be won or lost.

If Martin "lives" in a feminine-biased reality, she is sensitive to relationships and networks; it's not about winning, but about relations between people and balance between them. Were I questioning her, I'd be asking about disturbances in relationships between people. For example: did she perceive a change in her responsibilities on 12-JUL-03 as an outcome any dialogues she had that day? And then hone in from there.

This kind of approach with Martin would not compute with Libby and Cheney; it would drive them bonkers and make them squirm. Just hope Fitz has an innate ability to do this. His crack about the "young children" with one of the potential jurists may have tipped his hand, though.

Murray Waas's latest articles have some "you were there" quality about the Air Force Two flight.

On the flight back to Washington, aboard Air Force Two, Cheney, who lent the appearance to his aides of being sullen and preoccupied, wanted to again discuss Wilson.

Taking as true that it was just Cheney, Libby and Martin on the flight, you're left with a pretty specific guess which one of them might have mentioned to Murray Waas that the Vice President seemed a bit sullen that day.

The assumption that it was just the three of them on the flight comes from an October 2005 article by Barton Gellman in the Washington Post. That article too, has got some "you were there" quality.

So, we'll see, but it seems like Catherine Martin has got some things she's been wanting to say about the events of that day; some things she would like people to hear.

kim -- yeah, that's why I qualified it as seemingly hokey. Grey's efforts come across as very childish and overly simplistic, making it difficult to understand the real issues underlying the concepts. He does a great disservice to this field of study.

Read "Changes of Mind: A Holonomic Theory of the Evolution of Consciousness" by Prof. Jenny Wade-SUNY; it cracked my head wide, WIDE open. Helped me realize why men simply do not see the glass ceiling issue in corporate America or in politics, made absolutely perfect sense once I grokked that consciousness is one's perception of reality. Perception is predicated by biochemical and hardwiring as well as experience.

It's also easy to explain how we can't really understand or *see* another's perception of reality; what's transcendant consciousness like, for example? The fact that most of us have no ken of this state doesn't mean it doesn't exist, and yet we go about our day with a complete disregard for others that may be in our space that live in this state. We are blind to them.

But it's also extremely important to understand that consciousness is fluid; we can change where we are, how we experience the world. There are many folks who do this naturally, easily, and can use it as a tool.

In this case, a prosecutor with this skill could flex between cracking open folks who live in a highly competitive place, and folks who live in a highly connected, socially networked place. I think this will be invaluable if this scenario plays out as conjectured.

The first sentence of Michael Sniffen's 1/16/07 AP article, though factually accurate, is (intentionally?) very misleading:

"The prosecutor took a more aggressive stance and jury selection slowed so much in the CIA leak trial Thursday that the judge postponed opening statements until next Tuesday."
http://www.forbes.com/feeds/ap/2007/01/18/ap3342011.html

Fortunately Pachacutec's liveblogging Thursday for firedoglake.com made it clear that LIBBY's defense lawyers were the reason for the slowdown in jury selection and the reason for the postponement of opening statements until next Tuesday. Sniffen gets to this point several paragraphs later but only indirectly.

I don't think anyone gave you an answer on Cathie Martin, so: in 2003 Martin was VP Cheney's asssitant for Public Affairs - that is, his press person - and she is likely to be a key witness for the prosecution for several reasons. As the indictment mentions, she is one of the numerous government officials who discussed Plame with Libby before Libby's conversation with Tim Russert where Libby claimed he effectively learned about Plame. Apparently she heard from the CIA's press person that Wilson's wife worked at the CIA, and she told LIbby about that, probably in early July.

In addition, it seems to be the case that Martin was involved in the key media strategy session on July 12 2003 on Air Force Two where Cheney directed Libby what to say to pending media inquiries, including from Matt Cooper and, I believe, Judith Miller. She may well be the only witness apart from Cheney and Libby to that strategy session.

Finally, we know that Martin, along with Libby's assistant Jenny Mayfield, was present while Libby was on the phone later that day with Matt Cooper. This is, of course, one of the conversations about which Libby is accused of lying under oath.

Remember Ollie North's secretary in the Iran-Contra hearings? Loyalty to employer: US govt.

Ms. Martin, I predict, will not take a bullet for those two men, because she might not want to take the chance that she would go to jail with them....unless she's afraid they will have her bumped off for testifying against them.....hmmm, been reading too many spy novels.

for cboldt's tea leaf reading about the import of the sealed affidavit filing (without benefit of having seen the actual response).

The existence of another sealed affidavit accompanying the government's response adds a little reinforcement, I think, to my assumption that we would have heard by now if there was any clear indication in that government response that the grand jury leak investigation is over. This affidavit is presumably either further justification for continued secrecy, or an amended redacting of the affidavits and opinion which will reveal a little more of the information, but not all of the now-sealed material.

Perhaps the government was somehow able to respond without mentioning the status of the investigation, at all. Or perhaps, the fond wishes, and unsupported assertions, about the status of the government's investigation expressed by the owners of the Wall Street Journal have been thoroughly quashed by the government's response. I don't think we can count on the WSJ or AP to tell us if the latter is the case - which alone speaks volumes about the failures of today's "free press."

Does Fitz HAVE to say whether the investigation is "Over"? It seems that he is just required to either turn over the Miller and Cooper materials and/or provide a good reason why not. Fitz can likely make a strong argument for grand jury secrecy, in which case that may be all he said?

Why isn't the Fitzgerald filing itself available? The sealed affidavit presumably has the information about the investigation that Fitzgerald does not want released, but presumably a lot of that has to do with protecting the reputations of innocent accused like Rove and, to a lesser extent - since he's talked a lot more about his role in the case - Armitage. So there's no way to know whether it is also sealed because of any possible ongoing parts of the investigation.

Come to think of it, though, I can see no justification on Fitzgerald's part for not publishing the sections of his original Miller affidavit on Armitage, except insofar as he might be wise to make a new one since, as I recall, the judges own their own released the affidavit - Fitzgerald was mostly addressing the question of releasing Tatel's opinion, as I recall. So presumably this time around, forewarned of the possibility of releasing new sections of the Miller affidavit, and the Cooper affidavit, Fitzgerald might have made a new argument for keeping the sections that addressed Armitage redacted.

Come to think of it, somebody should be pressing for the release of more from Fitzgerald's February affidavit on materils from the press.

More or less agreeing with emptywheel here, it seems to me Fitzgerald will be on very strong ground making the argument for grand jury secrecy solely on the basis of protection of innocent accused from public ridicule, so he can if he wants simply remain silent on the question of whether the investigation is ongoing. That said, it seems to me that if he does remain silent, it's an indication the investigation is over, since in every previous instance where he could have recourse to the argument that the investigation was ongoing, he did, I believe.

On the other hand, the investigation, we pretty much know, is open - no way he'll close it before the Libby trial is over. So perhaps technically Fitzgerald can say the investigation is ongoing, even if it is not active and he has every intention of closing it once the Libby trial is over, on the assumption that no new information is brought to his attention through the trial that would warrant further investigation.

I'm confused what you're saying. What would there be on Armitage in the original Miller affadavit? Are you suggesting she spoke with him? Ditto Cooper--I don't see any reason why he would address Armitage in his Cooper affadavit at all.

I imagine the content left out of the Judy stuff (which is minimal, IIRC) has to do with things like the NIE leak. ANd I imagine the Cooper stuff has to do with 1) the Kessler feint, and 2) the Rove email.

Whether or not the investigation is "open," it seems he has a very good case for keeping it secret. And as to the Armitage stuff, I suspect there are a few details in that that Fitz hasn't revealed yet (such as the time of the Armitage call and more details on the INR memo).

The main point is just that whatever there is on Armitage in the Miller affidavit - probably not a lot, but some - could be released now, since he has publicly told his story. I'm certainly not suggesting that Miller talked with him. The point is that he is probably discussed in the context of the investigation there. In fact, the same goes for certain basic facts about Rove, since he has acknowledged speaking with Novak.

I don't think the details on Armitage you mention would warrant keeping it sealed, again in light of the fact that Armitage has gone public. This was an important consideration in Fitzgerald's initial response to Dow/AP on the first round of this back in late 2005-early 2006.

There is actually a not insubstantial amount of material, it seems, still redacted even in the Miller - and not just the Pincus - part of Fitzgerald's August 2004 affidavit.

The Cooper stuff, I might grant you (though I'm not sure). I just don't see it at all with Miller--what would it say? Miller's conversation took place before Armitage's with Novak, we have no reason (besides Maguire's dreamy hopes) to think that Judy spoke with Armi. So why would he be included at all? Just give me some hypothetical language, please...

The response itself (aside from the affidavit) is available, Jeff, it's just not available on-line yet. Although you and I may think the investigation is bound to still be "open" at least through the Libby trial, if only because of the Libby trial, the Motion to Unseal asserted otherwise, and I don't think that the government will want to, or safely can, leave that assertion hanging there, unaddressed in their response.

EW, I think if there was a way to argue a thorough and convincing response without revealing the status of the investigation, the government would have done just that. But the way that the Motion to Unseal was constructed, it seemed to me that the government was probably going to have to comment on the current status of the investigation (as the government did in its response to the 2005 Motion to Unseal). That's part of the mystery here, though - perhaps the response does a masterful job of making the case without revealing further detail (which to me makes for tea leaf reading that there is still very much an ongoing investigation, whereas Jeff would read that as meaning there is not still an ongoing investigation). I think we'll be able to read a lot into both what the government says and what it doesn't say in this response.

Recall that pargraphs 6-16 of the affidavit deal with the general subject matter of the investigation nd the general faction background on the investigation. Paragraph 12-13 almost certainly do contain information on Armitage's cover-blowing to Novak. I'm not saying it's going to be hugely revealing. i'm just saying it should be released, I imagine.

The other possibility is that in light of the trial, we may get unredacted material on Cheney as well.

pow wow

I have no idea whether there is still an ongoing, active investigation. I also don't know whether Fitzgerald will be clear or ambiguous on the point. But I think it's better to be minimalist in reading tea leaves.

OK, is the investigation finished? It's not over, but I'll tell you this: Very rarely do you bring a charge in a case that's going to be tried and would you ever end a grand jury investigation.

Here's what he said in his response to the first request to unseal:

The grand jury investigation that led to the indictment of Mr. Libby is ongoing.1

If I correctly interpret Matt Apuzzo's responses to my questions about his "over" claims, Fitz hasn't billed any investigative hours in a long time, but there was no statement about being "over" at the December hearing that (I believe) none of us here have read.

So I would assume he'd say the same today--wait until the investigation is over. Or, perhaps he filed a response that will be held until after the trial? But the old objection remains--grand jury secrecy. I see Jeff's logic that, therefore, Armi's stuff should go public and perhaps Novak's. Though unlike the Libby indictment, those things weren't revealed through legal means--they were revealed in the press. So even there Fitz may try to argue it shouldn't be revealed (and, frankly, with Rove I think it shouldn't. If he has truly escaped charges, then he really shouldn't be effectively accused publicly of perjury, which is what the filings would amount to).

But using the logic from the past, Fitz wouldn't release the Cheney info until it becomes public by other means. He can't tell what will come up about Cheney, so he could/should argue to hold it until after trial.

In other words, I'm guessing that Fitz may have revealed some stuff, but that that will be held until after trial. At which point he may (probably will) decide he is done--and therefore announce it.

Looking back over Fitzgerald's 12-2-05 response to Dow/AP last time around, I actually now agree with pow wow that it could well be pretty hard for Fitzgerald to get around being clear about the status of the investigation with regard to others - or at least with regard to Rove, but that's no surprise.

I also think that Fitzgerald will argue against making Armitage stuff public (at least implicitly), since public statements by people involved was only one of several considerations in his previous argument, and only as regarded the Libby part of the investigation.

See, but now that I read the Dow Jones/AP motion--it seems clear that the documents they're seeking contain little related to the "new information" they're talking about. The Cooper motion is related to Rove, so there'll be some about Novak, but only as background. And the stuff that remains hidden on Judy must relate to stuff we'll see in the trial. The whole fishing exhibition starts from a false premise. And as I've said before, they're looking for the wrong affadavits--they need to be looking for the subpoena for Novak in early 2004. And even then, we know there will be stuff that Novak HASN'T admitted to--the reason for suspicion about his and Rove's testimony.

-- Any sense of how long the lag is typically between the filing of such things and their public availability? --

It's publicly available now, but not online anywhere that I know of. The Court of Appeals for the DC Circuit won't make it available online, the only online publishing they do is the Opinions and Orders. I had to hire a runner in DC to get the November 2005 Motion to unseal. Fitzgerald happened to put the government response online for that Motion - I called the Special Counsel's offices and inquired as to whether or not they would be putting this Response online or not, and the answer I got was "I don't know."

Jeff, it's simply a matter of someone doing the shoe-leather work, is all. We only have the original 12/20/06 Motion to Unseal to refer to, because of cboldt's efforts in that regard.

The Circuit Court is in the same (Prettyman) courthouse as the District Court in D.C. So EW or anyone else who can find the time next week, could go to the Circuit Court clerk and obtain a copy of the unsealed response filed 1/17. That's if cboldt or someone else doesn't do the work first to get it on-line.

And I should clarify my own position: if the government were in fact to leave the Motion to Unseal's assertion hanging (about the investigation being "over") without addressing it, that would seem to add some weight to that possibility (that the investigation is basically "over"). My underlying assumption is that in fact the investigation has not been closed, if only because of the Libby trial, contrary to the many media accounts and insinuations otherwise; therefore I've assumed the government would not leave that Motion to Unseal assertion hanging. I also happen to believe there's a more than fair possibility that a good deal more than the Libby trial is still an 'open question.' So I'll take all the tea leaves I can get, after such a prolonged period of official silence from the government's camp.

I didn't know that you'd corresponded with Apuzzo about this, EW. Good job.

Btw, pow wow and cboldt, are the emails I see here active? I'm happy to email across the evidence I get during the trial, as I get it--cboldt might get it online before Iget a chance to look at it, given my expected schedule.

Btw, cboldt, I saw you are keeping a list of possible/likely avenues for appeal. One that Libby is sure to try is that Fitzgerald kept his strategy secret long after Libby was forced to reveal his defense strategy in the CIPA hearings.

-- I saw you are keeping a list of possible/likely avenues for appeal --

Heheh. That started just because I needed a place to put links for documents where the issues were settled. No doubt the issues up in "pretrial" will all drop down to "grounds for appeal" at some point. It's pretty easy to adjust the page, and one day I'll just cut and paste the category "Ruling on CIPA 6(f) reciprocal disclosure" from the top ordered list, to the bottom one.

On your question as to whether or not my e-mail addy here is active, I assume it is. I'm not always prompt with getting things online - workload here is unpredictable, and I know I'll be away for days at some points in the near future.

You will have to pay for copying the fining at the Circuit Court. The cost is 50 cents a page, I think, and they won't let you copy long filings. The good news is that the price per page for long filings is 20 cents per page, but you have to wait a day for the copy service to do the job. The copy service can also create digital versions (pdf), which is right handy and saves the time in mail, FedEx or whatever.

When I obtained specific filings, the copy service had a flat fee of $40 to start. I don't know, because it doesn't fit my remote location, but this "pay to talk" fee may be waived if you work through the clerk, as he gathers a mess of copying for multiple requests "through the clerk." If you work directly with the copy service, I guarantee the "pay to talk" fee will apply. If you get the documents from the clerk, they will be paper, period. The copy service then charges per page copying, then per page for fax transmission or digital conversion. If you don't mind the wait and the paper format, they "mail" (i.e., USPS or FedEx) the package at cost.

I suspect the cheapest route is the 50 cents per page at the courthouse - the response is probably well within the number of pages limit.

Thanks for the kind offer, EW. No, my email here is invalid/not active (I'll need to send you my e-mail before I can take you up on your generosity).

Have you thought about how to handle the evidence (I'm assuming you'll be getting the evidence the Judge has ordered both sides to provide to the media), here, or at FDL? Will one of the sites host the documents or just some of the selected highlights? Most of the evidence is likely to be in PDF format, isn't it? [Sounds like that's the way to go with the Circuit Court response in order to post it on-line or email it, thanks to cboldt's details.] Presumably they'll be scans of the original documents in most cases (which are the ones that cboldt has the most trouble converting to html, I believe). How else can documents introduced into evidence be emailed, as the Judge directed? Am I missing something obvious? And what's the cost for hosting a lot of pdf files on-line? As opposed to transcribing them into the comments occasionally. [Just trying to get a handle on the possible logistics of this.]

In other words, if you're going to be trying to coordinate evidence documents, from DC, in order to get them on-line, have you got that covered or could you use a little volunteer help with that effort, assuming one of the sites won't be automatically hosting the documents as they're distributed to the media? I'm not sure I'm in a position to really help out much, but I'm very willing to provide some free labor if that's all it takes to cover some gaps for you.

Um, excuse me. I have a question for Marcy Wheeler, the author of Anatomy of Deceit.

Ms. Wheeler, you claim in the prologue of your book that you "scooped" the MSM by six months by revealing Richard Armitage was the person who spoke to Novak.

I'd like to know what evidence you had at the time that supported this. I find it very misleading that you, and other bloggers like you, believe "guessing" is reporting and that it amounts to a scoop. The MSM reporters, David Corn and Isikoff, who reported Armitage did so based on evidence and interviews. They too could have played the same game as you and "guessed" it was Armitage. You did not scoop anyone. If you read through documents and discovered something that no one else did and wrote about it that is a scoop. But to suggest that your such a genius and discovered it was Armitage based on absolutely nothing is a lie.

I'm also curious how you claim you were the one who reported or wrote or blogged before MSM that Bush and Cheney authorized Libby to leak the NIE. Where did that come from? Do you just pull this stuff out of a hat and if it sticks make wild claims about how great you are? Again, no evidence. Wild guess. Lucky girl

I can only imagine how the rest of your book reads. I just got through the Prologue and it's quite a self-serving tone.

Um, excuse me. I have a question for Marcy Wheeler, the author of Anatomy of Deceit.

Ms. Wheeler, you claim in the prologue of your book that you "scooped" the MSM by six months by revealing Richard Armitage was the person who spoke to Novak.

I'd like to know what evidence you had at the time that supported this. I find it very misleading that you, and other bloggers like you, believe "guessing" is reporting and that it amounts to a scoop. The MSM reporters, David Corn and Isikoff, who reported Armitage did so based on evidence and interviews. They too could have played the same game as you and "guessed" it was Armitage. You did not scoop anyone. If you read through documents and discovered something that no one else did and wrote about it that is a scoop. But to suggest that your such a genius and discovered it was Armitage based on absolutely nothing is a lie.

I'm also curious how you claim you were the one who reported or wrote or blogged before MSM that Bush and Cheney authorized Libby to leak the NIE. Where did that come from? Do you just pull this stuff out of a hat and if it sticks make wild claims about how great you are? Again, no evidence. Wild guess. Lucky girl

I can only imagine how the rest of your book reads. I just got through the Prologue and it's quite a self-serving tone.